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Pot ad rules to be stricter than alcohol marketing

Alice Tseng says recreational marijuana products will not be able to advertise in a way that is appealing to young people.

The means of purchasing cannabis legally will soon be no different for people 19 years and older in Ontario than that of beer, wine or spirits.

The rules around marketing this product, though, are going to be much more restrictive and potentially more complicated than those surrounding beer, for example.

There won’t be any television commercials featuring attractive young people smiling and socializing.

The same prohibitions would not allow commercial spots featuring friends gathered together in front of a big-screen TV and a bong to cheer on their favourite hockey team.

Producers of legal cannabis are instead going to have to rely on different methods of distinguishing their offerings from that of their competitors, as a result of the many restrictions set out in the federal Cannabis Act. The provisions include prohibitions against sponsoring events, using celebrity endorsements, advertising that might impact “young persons” or suggest that the use of cannabis promotes a way of life that includes glamour or vitality.

The restrictions may pose a challenge for legal producers, but they are not as strict as those in place for tobacco, says Alison Hayman, partner at Cassels Brock & Blackwell LLP in Toronto.

“It is in between alcohol and tobacco. You cannot have packaging or promotion that is associated with a way of life. But the federal government is not requiring plain packaging,” explains Hayman, who is in the firm’s intellectual property group and advises on brand strategies for the cannabis industry.

That view is shared by Alice Tseng, partner at Blake Cassels & Graydon LLP in Toronto.

“It cannot be appealing to young persons,” says Tseng, which is what the federal government has explicitly stated as the main policy reason behind the marketing restrictions.

Even though people under the age of 19 in Ontario will not be permitted to purchase cannabis, rules related to packaging are not necessarily aimed at the legal customers, she explains.

“The reason for a special section on packaging is that it should not be appealing, even once it is in the house,” where children might see it, says Tseng, who specializes in marketing and regulatory issues in the pharmaceutical and cannabis industries.

Along with restricting youth access to cannabis, informing the public about the health risks of the product and trying to reduce organized crime involvement in the distribution of marijuana are the goals of the measures in the Cannabis Act, the federal government stated in a background paper issued last spring.

Legal producers of cannabis have already been active in setting out their own pledges when it comes to advertising their product.

An industry organization representing 17 of the largest licensed producers issued its own marketing guidelines last November, which promises that advertising will not be aimed at young people and will contain “responsible use” statements. As well, the companies pledged to comply with the rules set out by Ad Standards, the national regulatory body for advertising in the private sector.

Despite the statutory restrictions and broader concerns about the marketing of cannabis, there are still ways in which producers will be able to distinguish their product to consumers, says Hayman.

Inside the government retail stores in Ontario, “they can communicate information about the nature of the product,” she states.

“They can do advertising that is informational promotion as long as it targets people over 18,” she adds.

Breweries, for example, currently have promotional materials on a company’s website, but they require an online user to click on a link that attests that the person is of legal drinking age. Whether that will be sufficient for cannabis producers on its websites is not yet clear, says Hayman.

“The challenge is restricting to 18-plus,” she says.

As well, restrictions against celebrity endorsements of a cannabis producer might not contravene the rules if the individual is only an investor in the company, which is not uncommon in the wine industry, she points out. The Cannabis Act permits promotions by producers to entities that are authorized to sell to consumers, which in Ontario would be the province.

There are other ways to release information about your product that would not contravene the statute, says Tseng.

“A lot of this goes back to how the pharmaceutical industry is regulated. Certain press releases are not advertising if it is considered informational,” she explains.

Online advertising or e-mail updates about a product might be permitted as long as sufficient measures have been taken to ensure that anyone signing up to receive the information is of legal age, says Tseng.

As well, advertisements on late-night programming or pay-per-view outlets, where there is a reasonable assumption that the audience is over 18, could also comply with the provisions, Tseng notes.

The regulations to accompany the legislation have still not been finalized and Hayman says that will provide more clarity for the industry.

“This is still evolving. It would be ideal to have the regulations by July,” she says.